Brigham Young University Prelaw Review
Volume 20
Article 10
1-1-2006
Dred Scott v. Sanford: The Undermining of an
Unpopular Decision
Eric Pelfrey
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Pelfrey, Eric (2006) "Dred Scott v. Sanford: The Undermining of an Unpopular Decision," Brigham Young University Prelaw Review:
Vol. 20, Article 10.
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Dred Scott v. Sanford:
The Undermining ofan
Unpopular Decision
Eric Pelfrey"
The Supreme Court ruling in Scott v. Sanfi>rd pur an official sramp ofapproval
on the pmctia ofslavel:y. Reactions to the decision not only led the nation to ciz,fl
wm; bw ))'Stmuuically undermined the mit• oflaw in America.
F
rom a hisrorical perspective, it is evident that the laws of sociery in
America and the framewo rk of the legal system in wh ich they function
are not immmable, bm change within rhe context of contemporary developments. At ti mes, popular forces in American society and poli tics have
twisted, bent, evaded, and ignored legal statute- so long as they have been
able to muster majoriry support. The case of Scott v. Sanford 1 serves as a glaring example of such a pivotal moment of change. On March 5, 1857, the
"rule of law'' met the "rule of the majoriry" in pre- Civil War America and
the law lost. Whether or not we justify the reaction to Dred Scott from a
modern perspective, rhe Dred Scott decision-and the period of controversy
which followed- should be remembered as a moment in our past when the
Supreme Court was silenced and America chose to abolish slavery rather
than abide by Constitutional mandate. The result became a key facror influencing Somhern secession and served to ignite already polarized factions
into civil war.
Background
Dred Scott was born around 1800 as a little-known slave in Virginia.
T he propercy of his master Peter Blow, Scott craveled to Alabama and then
in 1830 to St. Louis, where Blow subsequently died. Army surgeon Dr. John
• Eric Pelfrey is from Auburn, Washington. Eric received a bachelor's degree in hisror)'
in April 2006. He plans w ;Htend law school in the future and he is interested in
the areas of international and constitutional law.
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Emerson rhen purchased Scorr and rook him into the free state of Illinois and
Iacer to Forr Snelling in the Minnesota Territory (now Wisconsin) on official
assignment. Emerson was transferred in 1836 ro Sr. Louis, Missouri, and
rhen farrher south co Louisiana, leaving Scorr behind ro marry Harrier
Robinson, also a slave. A lirrle over a year later, Emerson summoned Scott
and his wife to reunite with him , and the couple traveled unaccompanied
over one thousand miles co meet their master. Emerson died in 1843 and left
the Scorrs ro his widow, a resident of Sr. Louis, who hired them our tO an
army captain and other locals. h was during rhis stay in St. Louis that Scott
sought freedom for himself and his wife and offered to pay Emerson's widow,
Irene, three hundred dollars to free them. When she refused, Scotr flied sui t
in a local St. Louis court. Although he fl ied suit in Missouri, a slave state,
the merit of his legal action was based upon his extended sray in Illinois
and the Minnesota Territory. In Illinois, srare law forbade slavery and rhe
Missouri Compromise had banned slavery forever in the northern territory of
Minnesota. Extended residence in these free states and territories, he believed,
should make him a free man.
The District Court in St. Louis ruled against Scott in June 1847. The
court cited a technicality: in the milieu of changing ownership and interstate
residence, Scott couldn't officially prove that Harrier and he were Emerson's
property. Scott appealed and the followin g year the Missouri Supreme Court
ordered that the case be retried. In an 1850 retrial, rhe Circuit Court in Sr.
Louis granted the Scorrs freedom , but Emerson appealed rhe decision and returned to the Missouri Supreme Court. At this point, Irene Emerson turned
the responsibility of rhe case over ro her brother, John F. A. Sanford of New
York, who acred on her behalf. The Missouri Supreme Court subsequenrly reversed the lower court's decision, holding chat Scott was still <l slave.
Simult;Jneously, Scott (with supporr from rhe family of his first owner,
John Blow) had flied suit against Sanford in U.S. Circuit Courr for battery and
wrongful imprisonment and asked for nine thousand dollars in damages.
More rhan gaining remw1erarion for damages, rhe charges were an arrempr
ro get a federal court and jury to recognize Score's freedom. ln bringing sui t
against Sanford , a residenr of New York, Score ensured th:lt the case would
have to ulrimarely be decided in federal, no t state, courts. Additio nally,
' ·:rott v. Snn.find. 60 U.S. 393 (1853).
2006]
Dred Scott 11. Sanford
91
Sanfo rd, who was controlling Scott, would have been committing wrongful
im pr.isonment if Scott were indeed free, which is why the case was brought
against Sanford rather than Scott's actual owner, Irene Emerson. In addressing the issue of ju risdiction, Scott argued "in diversi ty," ~ claiming that
he was a citizen of Missouri and the defendant was a citizen of New York.
Sanfo rd d isagreed in a "plea of abatement," claimi ng that Scott, because he
was black, could not be a citizen of Missouri and that the federal court had
no jurisdiction. T he Circuit Court rejected the plea of abatement, accepting
char, even if Scott d id not have full legal or political rights, he had the ability
to bring suit in federal court. T he case rhus went to trial in May 1854, with
the jury being ordered to determine Scott's status by Missouri law. His status
as a slave having then already been decided by the Missouri Supreme Court,
Scott was unable to avail himself of his prior ability to declare his freedom in
Ill inois, and Sanford won the case.
By th is time the nation was experiencing an increasing level of controversy over the spread of slavery inro the territories. Scott's case, which
stretched to over a decade of litigation, seemed a textbook attempt to legally
so lve the slavery question and as a test case o n slavery became a fixtu re of
national attention. W ith the added pro-bono help o f a Washington-area
lawyer with stro ng ties ro Missouri, the case was successfully appealed to the
Uni ted States Supreme Court and slated fo r the December 1855 term.
Precedent
The South strongly believed that slavery was constitutional long before
Scott's case appeared on the Supreme Court docket. The South had developed an inrerpretation of the Constitution that d enied the prohibition of
slavery in all its forms,·' a view of the C onstitution that transcended the
forces of the legislative and execmive b ranches. According to historian
Arthur Bestor, the Southern interpretation "wiped out every policy-making
function o f the federal govern ment where slavery was concerned"' because it
·An aspect of federal jurisdinion that allows citizens of different stares
to
sue each other
in fede ral courr in some circumstances.
' Arthur Bcst<)r, Stme Soi,emgnr:y and SfttiJl'IY: A Reinterpretation of Pro.rl 1V1'1)' Con.<tirmionnl
Dortrine, 1846-1860, Th e Dred Scon D ecision: Law or Politics? 17 0 (Stanley L..
Kuder. 1967).
" !d. at 17 6.
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limited the powers of Congress to simply providing for and protecting rhe
practice, but no impact in deciding its permanence. Southerners, by 1857,
had built upon legal cornerstones a constitutional bulwark in defense of slavery.' In decades fo llowing rhe signing of rhe Consti tuti on, the governmen t
had consistently confirmed that slaves were ro be treated as properry. Both
the federal government and the Supreme Courr had confirmed this interpretation . T he constitutional defense had served Sourherners well, and rhey
truly believed in rhe veraciry of the argument as voiced by rheir most gifted
orators: John C. Calhoun and Alexander Hamilron Stephens.
From the beginnings of American nationalism, the Southern states boldly
protected the institution of slavery as a constitutional right. Ald1ough the
Constitution did not specifically prohibit nor endorse slavery, it created a loose
framework within which the practice would be allowed ro thrive. By inrerpretation, the Constirucion's Three-Fifrh's Compromise was an endorsement of
slavery. While a political measure meant to use rhe slave population ro benefic
the Southern stares' represenrarion in Congress, rhe Compromise was ar rhe
same rime a clear consritutional sratemenr on the disenfranchisement of
blacks; a slave was not to be counted as a full "person." In addition, the
Consrirmional Convention hammered ou r clauses concerning the slave trade
and rhe rrearmenr of fugit ive slaves. The Constitution prohibited Congress
from oudawing rhe Atlantic slave rrade for rwenry years. While rhe measure
did stop the flow of incoming slaves, ir was a clear recognirion of rhe insrirurion of slavery. The Fugitive Slave Clause required rhe rerurn of runaway slaves
to their owners. Under the clause, the federal government was given power ro
pur down domestic rebellions, including slave insurrections. These stipulations
on slavery, rarified by each of rhe Northern stares as well, were seen by
Southerners as the North's racir approval of the practice. Although Northern
an tislavery senrimenr was already a force in 1787, Norrhern delegates ro the
Constitutional Convention saw rhe inclusion of slavery as necessary ro esrablish a strong union. Wirhour rhese specific prorecrions of slavery,
Sourhern scares would nor have endorsed rhe federa l charrer nor joined the
union of stares. John Rutledge of Sourh Carolina made chis sentiment clear
when he rebutted Northern moralisr arracks on slavery. "Religion and
humanity have nothing ro do with this question," he insisted. He claimed
' Don E. Fehrenbacher, Sectional Cri.ris and S(lut!Jem Comtimti(lnnlism. 13S ( 1989).
2006]
Dred Scott v. Sanford
93
that unless regulation of slavery was lefr ro the stares, the Southern states
"shall nor be parties to rhe union."''
Based upon the outcomes of the Consti tutional Convention, the South
would build upon a constitutional defense of slavery for seventy years. Despite
co nflicts with Northern constitutio nal theorists, Southern leaders held strong
to the idea that, through broad interp retation, the C onstitmion did indeed
protect slavery. Southerners saw specific legal and legislative examples before
1857 as cementing rhis constitutional right. Southern leader Alexander H.
Stephens viewed a congressional resolution in 1790 as an initial federal defense
of rhe practice. Stephens related "a petition invoking the Federal authorities to
take jurisdiction of [slavery], with a view to the ultimate abolition of this
Institution ... was sent to Congress."- He said, "This movement was checked
by the resolution to which the House of Representatives came . .. [which declared] that Congress have no authority to interfere in the emancipation of
slaves, or in the treatmen t of them within any of the States; it remaining with
rhe several States alone ro provide any regulations therein, which humanity
and true policy may require."•
Southerners also drew upon courtroo m precedent to cement the constitutionality of slavery. fn 1837, Edward Prigg, a runaway slave in York
Cou nty, Pen nsylvania, had been abducted and beaten in an effort to bring
her back to her master. The State had convicted Prigg on assault and kidnapping charges, wh ich he app ealed on grounds of the fed eral Fugitive
Slave C lause. In 1843, the Supreme Court acquitted Prigg and asserted the
federal government's protection of the rights of slave own ers to red eem
their p roperty. The Washington Daily Union would claim that, by way of
Prigg v. Pennsylvania, "Congress had the constitutional power to legislate
for the return of fugitive slaves," and that ''learned tribunals in various
Stares have concurred in that d ecisio n, and the unimpassioned judgment
of the people approves of ir."'' Senator Judah P. Benjamin, a Louisiana
•· S. Mimz, The Constirution and Slavery, University of Houston, 6,
hnp://\"'vw.d igi talh istory.uh .edu/ database/a rtide_disp1ay.cfm ?H H 1D= 293
(last visited Mar. 15.2005).
· Alexander H. Stephens, A Comtitutionnl View ofthe l.rtte Wnr Betwem the Stntes, 28
(1870).
' /d
" Bcstor at 52.
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Democrar, saw larger im plications in the case. "Although the suit was in
the name of an ind ivid ual, really it was the rights of Maryl.md that were
concerned, and it was the State of Maryland that was interested in th e d ecision ... . Every judge on the bench gave h is decisio n in th at case. Every
judge on the bench concurred in the decision. ""' To Benjam in and others
in the South, Prigg v. Pennsyl11ania cememed the Fugitive Slave C lause as
a fund amental article of the Constitut ion because it ac knowledged the fed eral government's legal responsibili ty to p rorecr slavery and rhe righrs of
rhe slave owner. ' 1
As the slavery debate heated up, Southerners came to rely up on rhe judiciary to hold against shifting in fluences in Congress. Slavery, in rhe Sou thern
mind, was no r debatable, but a God-given, consrirurionally protected righ t.
Only rhe judicial branch could be cou nted on to protect it. Antislavery sen timent, by 1857 , was increasing in the Senate and was already stro ng in the
House, where a clear Republican majority could already be assembled .'•
Despite a history of p roslavery supporters in rhe W h ite H ouse, Somherners
realized that the executive branch cou ld nor be trusted in the long ru n ro protect slavery. Thus, rhe Southern consritutio nal view would have to eliminate
the policy-making powers of Congress as f~1r as slavery was concerned.
Congress would be delegated admin isrrarion of slavery's ways and means, bur,
because rhe Consritu rion prorecred rhe pracrice, irs powers would nor include
deliberation upo n rhe ends thereof. I.' The courts, therefore, in respond ing
only to rhe Consrirurion and nor changing arrirudes of the republic, swod in
Southern eyes as stoic defenders of slavery as an "inalienable" property righr.
In rhe end, the federal jud iciary would be lefr ro acrively protect slavery.
Awairing the Dred Scott decision, Sourhern leaders were con fide nt thar
their conscirurio nal rights to slavery would be safeguarded. In rhe wan ing
years of the 1850s, rhey clung ro chis as their lasr defense against the en-·
croachmen t of abolitionism.
The Supreme Court in rhe I 850s was a rock of consrirurional (and
So uthern) conservarism. Ar irs head sat Chief Jusrice Roger Brook T aney,
' !d. at 65.
'' Pehrenbachcr ar 135.
" Bcsror ar 177.
"ld ar 176.
2006)
Dred Scott v. Sanford
95
approach ing his twentieth year on the bench as Chief Justice, and his
eightieth birthday. Born and educated in Maryland, Taney was a strong
conservator of the traditional values advocated by his Southern culture. Taney
rose quickly through the legal and political ranks, serving in the Maryland
House of Representatives and as Attorney General of Maryland and later
the United States under Presidenr Andrew Jackson. The Senate confirmed
his appointment as Chief Justice of the Supreme Court in 1836. A staunch
Democrar, Taney was a key supporter of Jackson's fight against the Bank of rhe
United Stares, yer stricrly defended the individual's right to property. Norrhern
political forces were critical ofTaney's appointment, and the Senare had debated for three months before con firming it. Republican Northerner Daniel
Webster had commented at the time of his appoinrment that "the pure ermine
of the Supreme Courr is sullied by the appointmenr of thar political hack,
Roger B. Taney. "•' \ restructuri ng of the federa l court sysrem in March 1836
added two new judicial circuits in the southwest and t\vo Associate Justices,
also appoinred by Jackson. The Court had entered a new era. f.1voring rhe
conservative Democrats. Regarding slavery, Taney and his court would be labeled with a Southern bias. Seven of the nine justices were appointed by
Southern presidents in favor of slavery. Of the seven, five justices {Wayne,
Catron, Daniel, Nelson, and Campbell) were from hunilies who had owned
slaves. Only t\vo of the four Northern jusrices srood against slavery
(McLean, an acknowledged abolitionist, and Curtis, also antislavery, but in
more moderate cones). The other two Northerners were conservative, statesrights democrats."
Opinion across rhe stares on the slavery issue was not as decided as in
the Supreme Court. When rhe Court prepared to pronou nce its decision
in the early momhs of 1857, the Union had been boiling in a stare of political upheaval. Secrional confl icr over slavery had been building to some extent since the signing of the Constiru tion, bm comroversy over recent
rerriwrial acquisitions had added fu el ro the fi re. In the eyes of rhe public,
the ] 820 Missouri Compromise had attempted ro mend the widening gap
" Supreme Courc Hisrorical Sociery. 7nnq Court.
http:/I www.su premecou rrh iswry.org!O 2_h iswry/subs_hiswry/0 2_cOS. htm I (last
visited March 200'5).
" Vincent C. Hopkins. Dred 5/·ott's Cme, 32- GO (Russell and Russell, 1967).
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between slave and free states, but had failed miserably."' Additionally, the
1846 Wilmot Proviso had enraged Sou therners particularly, striking into
them a fear that abolitionist forces were gaining momenrum in the territories." The Compromise of 1850 fo llowed and left the counrry again in a stare
of disagreement, as both North and South felt rhe concessions therein roo
dear ro parr wirh. 1" Furthermore, rhe Kansas-Nebraska Bill of 1854 had left
the door open to slavery in the territories by calling for a popular vote on rhe
issue among residenrs of the territory. In response, both pro- and anrislavery
radicals stormed into rhe territories to "cushion" the vote in their favor and
created a political frenzy of foul play and bloodshed , known as " Bleeding
Kansas. " Another divisive issue arising in 1854, and an evenr which would
form the prelude to the Dred Scott conrroversy, was the formation of the
Republican Party, whose abolitionist political d esigns Southerners would
interpret as a direct assault on their rights. The nation, embattled over the
slave issue, set its eyes on rhe case of Dred Scott. Norrherners and
Southerners, Democrats and Republicans, srood in anticipation of what
would be the first definitive word on the constitutionality of slavery.
'"The.: Missouri Compromise called for a legislative trad c-oiT in that Maine would be
admirred ro rhe Union as a free.: state, so long as Missouri would he aJmin ed as
wdl and allowed ro draft its own constitution (which, ha snl on 1hc population of
Missouri, would undouhredly prOtect slavery). After 1wo arrcmprs to pass th e bill
through co ngress, Missouri was admi!ft:d
slavery, bur only somh of 36°30.
co rhc Union a nd all owed
to
sponsor
' The Wilmot Proviso. tirst sugge$ted on Aug. 8. 1846, in the House of RepresentatiVL'S,
would have o utlawed slavery in any rc.:rrirory acquired from M~xico by the Unirc.:d
Srarcs as a result of the rccenrly begun Mexican-American War. Somhcrners saw
property rights ro slaves as protected under the Constinuio n and opposed any limi t
on the right to take slaves intO the territories. Proslavery facrions g.1ve ~trong o ppositio n to the Proviso and it was never passed.
'' The Compromise of 1850 was an aucmpt ro balance 't-crional inrcrcsrs in the sla very
issue by addressi ng territories acquired during rhc Mexican- America n Wa r
( 184Cr48). Through a series of five separate pieces o f legislat ion, Califo rnia was
admitted as a free stare, ·Jexas received financial compens:uion for rel inquishing
claim
to
lands wesr of the Rio Grande, th e Unircd Srares rarito ry o f New Mexico
(including presem-d ay Arizona and Utah) was organi1..ed wirh o ur any specific prohibitio n of slavery, rhe slave rrade (bur not slavery irsdf) was aholi~h ed in Washington , D.C.. and rhe ~ugitive Slave l.aw was passed. requiring <lll U.S. ciri1.ens to
assist in the return of runaway slaves.
2006]
Dred Scott v. Sanford
97
Decision
In anticipation of Dred Scott, political leaders expressed a readiness to
accep t the Supreme Court's verdict on slavery as decisive and binding.
Outspoken Illinois Republican Abraham Lincoln, tired of what he viewed as
the Democrats' artificial construction of the Constitution, expressed his view
that the "Supreme Court of the United States is the tribu nal to decide such
questions, and we will submit co its decisions; and if you [Democrats) do
also, there will be an end to the matter. "''' Senator Stephen A. Douglas, a
Northern Democrat, retreated as well to the idea that the Court held the last
word in the slavery debate. "If the Constitution carries slavery [into the territories) ," he said," .. . let it go, and no power o n earth can take away... .
The true decision of the constitutional point . .. I am wi ll ing to leave that
to the Supreme Court of the United States."lo Senator Albert G. Brown, a
Mississipp i Democrat, agreed with his Northern coum erparrs that slavery
was "a question to be decided by the courts, and not by Congress." 1' The
American Law Register, a contemporary nation al legal journal, agreed that
the valid ity of the Cou rt must be u pheld. "With all its imagined fau lts,
what is there that can replace [the Supreme Cou rt)? Strip it of its power, and
what shall we get in exchange ... discord and confusion, statures withour
obedience, courts wi thout authority, and anarchy of principles, and a chaos
o f decisions, till all law at last shall be extinguished by an appeal to arms. "11
C hief Justice Taney read rhe Court's decision (seven to two in favor of
San ford) on the morning of March 6, 1857. Accordi ng to the majority opinion, the case had presented two leading questions: first, " had the Circuit
Cou rt of the United States jurisdiction to hear and d etermine the case between these parties?" and secondly, "if it had jurisdiction, is rhe judgment ir
has given erroneous or not?" 1 ' Taney wasted no time in getting to the root of
,., Roy P. Basler. The Collected Works ofA/Jmhnm !.incoln, The Dred Scon Decision: Law
or Politics?, 5 {Sranlcy L. Kmler, 1967).
'" Congressionfll Globe. 34th Congress. 1st .<mion, The Dred Scorr Decision: Lw; or Politics?,
4 {Stanley L. Kud er, 1967) .
., !d.
.'.' "Appellate Jurisdiction of rhe ~cdcra l, over rhc Sr:He c{)IJ('[S, " Amerimn !.nw Rrgister,
The Dred Scorr Decision: Law or l'olirics?, 3 (Stanley L Kurler, 1967).
' ' Benjamin C. Howard, A Report ofthe Decision cif'the Supreme Court efthe U11ired
Swes in the Clue of Dred Scott vm us john f.' A. Sflndford, 400 ( 1857).
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Brigham Young University Prelaw Review
[Vol. 20
rhe second question. "Can a Negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community
formed and brought into existence by the Constitution of the United
Srares?"1• His answer was clear: Free Negroes were nor consid ered citizens of
rhe United States. Taney cited rhe Constitutions definition of a citizen as
well as naturalization laws for Indians in support of the Court's argumen t
that the law recognized b lacks as neither born nor nawralized Americans.
The African slave, he claimed, was nor intended to be embraced by rhe general clauses of the Declaration of Independence nor the Constitution, and
the slave trade and fugitive slave provisions in the Constitution supported
this interpretation. Taney furrher cited state laws passed at the time of the
signing of the Declaration and Constitution which supported rhe fact rhar,
when the Constitution was agreed upon and rarified, "nor only were Negroes
not citizens, but they were considered as a subordinate and in ferior class of
being ... and had no rights or privileges bur such as those who held the
power and the government might choose ro grant them."~' In answering the
first question on jurisdiction, the Court's opinion was equally clear. The Court
decided that Scott and his family were, "by rhe laws of Missouri, the property
of the defendant; and that the Circuit Court of the Un ited Stares had no jurisdiction, when, by rhe laws of the Stare, rhe Plainriff was a slave, and not
a ci tizen . "~ .. Taney again cited the Fugitive Slave and Slave Trade Clauses of
the Constirurion ro su pport chis interpretation. Since Dred Scott was still a
slave, he was not entitled to rhe legal right to sue, and the case was dropped.
The Supreme Court of the United States had spoken: free blacks were
nor to be enfranchised in rhe American political body, and slaves were to be
considered property. G iven the make-up of the Court, and decades of legal
precedent in lesser cases, the outcome ro rhat poinr could have been ex·pecred by even the most ardent of Scott's abolitionist supporters. Yet, the
Court hadn't finished its ruling. Taney, in a bold exercise of judicial review
(and to Northern dismay), expanded the verd ict ro include an answer ro the
second question posed by rhe Court, thus encompassing the issue of slavery in
the tenitories. The Missouri Compromise, while allowing slavery in terricories
'' Hopkins ar 63.
" ld
''· !d. ar 7 I.
2006]
Dred Scott 11. Sanford
99
south of Missouri, had outlawed it in the Northern territories. Scott, in his
suit, had argued that by the Missouri Comprom ise, residence in Minnesota
Terri tory had made him free . But the Court contended that the act's outlawing of slavery in certain territories violated property rights protected by
rhe Fifth Amendment's Due Process Clause. Slave owners, it said, held the
constitutional right to own slaves in whichever territory they resided, and
this right had been infringed upon by the Missouri Compromise.
Territories, as property of the combined United States, were nor sovereign,
and Congress was authorized by a vague constitutional passage co "make all
needful rules and regulations" on their behalf. z7 Congress, in the Court's narrow interpretation, had no explicit power co ouclaw slavery. In fact, the only
power possessed by Congress on the matter, Taney argued, was "the power
coupled with the duty of guarding and protecting the owner in his rights."1'
The Missouri Comprom ise, because it outlawed territorial slavery, was
ruled unconsrirurional by mandate of rhe Supreme Court.
Public Opinion
Upon Taney's reading of the majority opin ion in Scott 11. Sanford, the
Somh was instantly vindicated after decades of debare. The case, heralded on
all sides as the deciding legal word on slavery, substantiated Southern consri tu tiona I authority, and Southern reactions to the verdict of the Taney Court
were swift and positive in affirming the constitutional legitimization of slavery.
Based on their praise of the judiciary, Southerners respected the Court's decision as unbiased truth, elevated above the political strife of the rime. For example, the proslavery Cincinnati Daily Enquirer reported that the Supreme
Court justices, "by virtue of the age, eminent legal attainments of its members. their life tenure, which places them beyond the influence of party feeling, have no motive whatever in the world to bias and corrupt their
decision."!•, In agreement with popular Southern views, the Court's judges
had no motive for bias ro corrupt their decision . T he Washington Daily
Union, another Southern-minded paper, agreed, findi ng that the Supreme
Court was "elevated above the schemes of party politics, and shielded alike
r Don E. Fehrenbacher, Sectional Crisis ,md Southern Comtimtionnlism, 136 (1989).
,, !d.
'' Cindnnnti D11ily 1-:nquirer, M~r. 8, 1857, The Ored Scou Decision: Law or Politics?,
55 (Stanley 1.. Kuder. 1967).
Brigham Young University Prelaw Review
100
[Vol. 20
from the effects of sudden passion and popular prejud ice. "·~' Such comments
mad e dear the hlCt that Southerners saw legitimacy in the d ecision which
transcended popular debate.
In southern eyes, the Dred Scott decision had, once again, put an official
and lasting stamp of approval on the p ractice of slavery. Yet, what was even
more important ro Sou therners was the decision's rul ing on the hotly conrested issue of slavery in rhe territories. Taney's exercise in judicial review
delivered a clear verdict in the territorial debate by striking the Missouri
Compromise which, through in terpretation, would make all such attempts
to ban slavery from the territories illegal. Southerners were authoritatively
vindicated in believing that the Missouri Comprom ise, "an act in which the
South had allowed itself to strike at its own constitutional equality,">• and
any such o ther attempts to restrict territorial slavery were unconstitutional.
This not only substantiated the crux of the Southern defense of the constitutionality ofslavery, b ut gave the Sou th a tremendous political advantage in
territorial politics. Somherners were ecstatic. "The decision of the Supreme
Court," rep orted the Charleston Daily Courier, "just pronounced, in the Dred
Scott case, that the Missouri Compromise is unconstitutional (an opinion we
have always entertained and maintained) and that free negroes have no righ ts
as citizens under the Constitution of the United States . ... [The decision]
will, we confidently believe, settle these vexed questions forever, quiet the
country, and relieve it of abolition agitation, and rend ro greatly perpetuate
our Union- our Constitutional Union- the greatest political boon ever
vouchsafed by God to man.".s!
Northerners, on the other hand, were not so p leased with the ourcome. The Northern response to Scott v. Sanford was direct and aggressive
in reburri ng the legiti macy of the decision. Senator William Pitt Fessenden ,
a Maine Republican, voiced h is disapproval on the Senate floor:
I am bound to render obedience to the Supreme Court of the Unired Stares; bur
when they undertake ro senle questions nor before them, I rell rhem those ques-
"' Washingtoll Daily Union, The Dred Scott Decision: L.aw or politics?, 52 (Stanley L.
Kutlcr,l967).
" C'harleston Daily Courier, March 9, 1857, The Dred Scort Decision: Law or polirics?,
54 (Stanley 1.. Kuder, 1967).
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tions are for me as well as for rhcm. When rhcy underrake ro give opinions on
collareral marrcrs .. . I rdl rhcm rhey arc men like myself and orhers, and their
o pinions are of no value. "
According to Fessenden, the Court had overstepped its legal boundaries
by inserting a decision which fe ll outside the boundaries of the case and had
there·fore given an unwarranted constitutional interpretation. After all.
Taney could have stopped his decision at the ruling that Scott, as a slave, had
no right ro b ring suit, and d ismissed the case at rhar point. Bur the majority
opinion rook rhe legal liberty to include a ruling on the issue of territorial
slavery. As a result, Fessenden and others thought that the Court had lost irs
legiri macy as the nation's h ighest court. Joined by a majority of Republicans
in Congress, the Senaror attacked the Southern bias of the predominately
proslavery court and attem pted ro render the decision void. Northern leaders felt that the Court had no authority in determining narional policy and
railed against Taney's declaration on the Missouri Compromise.
In addition, the ruling upset Northern senrimenr that slavery, after all,
was not a constitutional right co property, but shou ld have been outlawed
long before 1857 to support rhe "all men are created equal" language of the
Declararion of Independence. Fessenden, for exam p le, refuted the
Southern hold on whar he considered a secondary reference in the
Constitution to the slave trade and argued against the assumption that
slaves be treated as property because of it: 14 Northerners, with the congress ional majority, were determ ined to eliminate slavery in spite of a
Supreme Court verdict they saw as tainted . Douglas sough t to garner
broad sup port for his p residemial campaign. To do so, he drew a middle
line in rhe slavery debate by revoking slavery wirhour di rectly opposing rhe
Supreme Court's decision. In his "Freeport Docrrine," Douglas claimed
that the cirizens of a territory opposed to slavery could preven t it th rough
simply nor passing police regulations necessary ro p rotect ir. "It matters
not what way the Supreme Court m ay hereafter decide as to the abstract
question wherher slavery may or may not go into a Territory [sic] under rhe
Constirution, rhe people have rhe lawful means to inrroduce it or exclude
" Ctmgm sionnl Globe, 34th Congre.r.r, l .rt se.rsion, The Dred Scott Decision: Law or Politics?,
57 (Stanley L. Kutler, 1967).
,, ld
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ir as they p lease."J; Yet Douglas, by ski rring the sovereign ty of rhe Supreme
Court and manipulating territorial law, also u ndermined the Scott v.
Sanfot"d decision. Abraham Lincoln, Douglas's opponent in rhe lllinois
senatorial race, articulated Northern fears by noting that through Dred Scott,
the practice o f slavery cou ld be incorporated in ro the law books of the states
themselves, a reasonable extension of the decision's protection of territorial
slavery. -~. Lincoln expressed Northern fears that, th rough a decision of the
Supreme Court, slavery could o ne day become law in their own states:
Welcome, or unwelcome, such a decision is probably coming, and will soon be
upon us .. .. We shall lie down pleasamly dreaming thar rhe people of Missouri
arc on rhe verge of making their Stare free. and we shall awake ro rhc realiry instead, thar rhc Supreme Courr has made Illinois a slave Sracc. ' )() meet and overrhrow rhe power of thar dynasry is rhe work now befOre all rhose who would
prcvcnr rhat consummarion. ,.
Lincoln advocated a radical dismissal of slavery and irs consriwrional defense by rhe Southern sector. In fac t, Lincoln claimed char if he were elected
to Congress, he would voce co stop slavery in spire of the Dred Scott verd ict.-'"
Abraham Li ncoln embodied an ever-growing antislavery section of Northern
politics which was clear in both dismissing che Dred Scott decision and ad vocating rhe abolition of slavery.
The results of the Dred Scott decision were poh1rizing in the North. T h e
Democratic Parry split between Northern and Somhern f.tcrions over
Douglas's Freeport Doctrine. The Republican Parry, at the same rime, rad icalized as abolitionist factions, gained increasing control. In the election o f
1860, not only did the Republicans witness substantial congressional gains,
but Lincoln , whose name didn'r even appear on most Southern ballots, won
rhe presidency by landslide. Republicans, by 1860, had overruled the legitimacy of the Supreme Court within their own ranks and were primed ro push
their political agenda inro rhe sectional debate.
" Politiml Dt•bflte.< between Hon. Abmhnm Uucoln nnd Hou. Stephen A. Douglr~>. The
Dred Scott Decision: Law or Policies?, 77 (Scan ley L Kud er, 1967).
'" !d ar 70.
,- ld
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at
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Lincoln's notion that the Republican Party intended to reverse the Dred
Scott decision would, in f.'lct, come to fulfillment less than two years later. In
1862 Lincoln's Attorney General, Edward Bates, was questioned as to whether
free Negroes cou ld command American vessels, a right reserved ro American
citizens. In his reply, Bates cited the minority opinion of Justice Curris in the
Drt•d Scott case, "sustaining Negro citizenship" and "dismissing Taney's remarks
as irrelevant and not binding."''' Also in 1862, the Republican-controlled
Congress effectively struck the majori ty ruling in Scott v. Sanfordby passing an
act which specifi cally prohibited slavery in the existing territories, and any territories yet to be formed. 1" Withom Southern opposition in Congress, the act
easily passed. These outcomes reflect the sinceri ty and determ ination of the
Republ ican North to defeat slavery at all costs, which included risking the future legitimacy of Supreme Court decisions.
The aggressive Northern reaction to Dred Scott sparked a fearful, agitated
response throughout the South. As Southern sectionalists saw it, Northerners
were undermi n ing the very fabric of the Constitution by stripping the
Sup reme Court's decision of its legitimacy. Southerners reacted quite negatively to the rhetoric of both Lincoln and Douglas following the ruling.
Mississippi Senator Albert G . Brown saw both Douglas' and Lincoln's designs to devalue the Supreme Court verdict as an indirect violation of his
constitu tional right to own property in the form of slaves: " I never agreed,
after we had established rights [to slavery] by the decision of the Supreme
Court, we were to be deprived of those rights by a congressional compromise."·il Brown's fellow Mississippi Democrat, Senator Jefferson Davis, was appalled at Douglas's stance in particular. Davis attacked Douglas on the Senate
Aoor for his "apostasy" from the Democratic parry line and described him as
being "full of heresy" for his Freeport Doctrine. Davis even moved to supporr
Douglas's removal from chairmanship of the Committee on Territories.'1
,., Official Opiniom ofthe Attomep Gmeml ofthe United Stntes. X The Dred Scmr Decision:
L'lw or Politics?, 105 (Stanley L. Kuder. 1967).
·•" StntuteJ at 1-ttrge XII, The Dred Scott Decision: l.aw or Politics?, I 09 (Stanley L.
Kuder, 1967).
'' Congressionnl (;fiJbi!. 35th Congress, 1st session. T he Dro.:d Scorr Decision: l.aw or Politics?, 82 (Smnley L. Kuder. 1967).
··~ Wi lliam J. Cooper Jr., Jejfh>on Davis, American, 304 (2000).
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Southerners also saw the Northern response as a d irect assault on a clearly defined constitutional right. "The right to have slave property in the territories is not a mere abstraction, without application or practical value,"
argued the Chtlrfeston .Mercury, but among a slaveholder's "guaran tees of the
Constitution."43 The editorialist further articu lated ,
When a parry is enthroned at Washington, whose creed is, to repeal the Fugitive
Slave Laws, the under-ground railroad will become an ovn~ground railroad. T he
tenure of slave properry will be /Clr w be weakened; and the slaves will be scm
down ro the Corton States for sale, and the Frontier States mter on the policy of
making themselves Free States. (sid•'
"The ruin of the Somh, by the emancipation o f her slaves," expressed
one Southerner, " is not like the ruin of any o ther people. It is not a mere loss
of liberty .. . it is nor a heavy raxarion .. . . Bur it is the loss of liberty, property, home, country- everything th at m akes life worth having....,;
Furthermore, the Somh saw the North's d ismissal of the Dred Scott ruling
not only as a powerful political attack, but a harbinger that the Sourh was
losing any foothold it may have maintained in Congress, where Northern
Republicans had gained majority control. As Sou thern lawmakers saw it, t he
"tyranny o f the majority" of Northern antislavery advocates would eventually gain enough political power to subvert Southern insti tu tions. By the late
1850s, Southerners felt that it was only a matter of time before antislavery
Republicans gained two-thirds control of the House and Senate, and with
the election of 1860, control of the Wh ite House. Also, if the No rth could
incorporate amislavery territories into the Union, in spite of Dred Scott, they
would gain the three-fo urths majority of states necessary to amend the
Constitution. This fear of Republican Constitutional revision ism had represented a primary con cern among Southern slave interests and underlay the
importance of the territorial debate.
By the North's dism issing Dred Scott, Sourherners believed that the North
had subverted the Supreme Court and the Constitution of the Un ited St.ues.
•' Tbe Charkston Memtl)~ The C..aus<·s of rhc Civil War, Feh. 28, 1860, 148 (Kenneth M.
Srampp. 1991 ).
"' The Charleston Mercw:y, Ocr. II, 1860, ar 151.
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105
The decision had temporarily given Southerners new political life. Yet after
the Northern reaction, they realized rhe instability of constitutional guarantee. With slavery gone, what else cou ld the North take away? Stephens felt
that
rhc Abolition or Anti-slavery Parry under the name of Republican . . . succeeded in the election of the two highest officers of the Governmenr, (in
Lincoln as president and Johmon as vice-president) :Hld pledged to carry our
their principles, and to carry them out in open disregard of the decision of the
Supreme Court, which highest Judicial 'li·ihunal under the Constitution, had
by solemn adjudication denied the power of the Federal Government to rake
such action as the party and its two highest officers stood pledged ro carry our:•
To Southerners, the Republican-led arrack on their constitutional right
to slavery (as supported by Dred Scott) necessitated an institutional distrust
of the federal government: The Union of States was no longer able and willing to uphold their rights as Americans. The eminent d enial of slavery by the
federal government would signify n ot only specific economic loss, but would
serve to undermine the stability of Southern society in general and severely
weaken the authority of state governments.
Unable to secure what they thought of as inalienable rights through the
federal system, Southern leaders resorted to secession. The Congress of
Sourh Carolina, in an 1860 " Declaration of rhe Causes of Secession," ourlined the No rthern attack on slavery as irs foundational grievance. "Those
[Northern] States have assumed the right of deciding upon the propriety of
our domesric insriturions; and have denied the rights of property established
in fifteen of the States and recognized by the Constitution. "·17
Since 1787, most Southerners had viewed the Consti turion as a legal
agreement, a bindi ng contract between the stares. The protection of slavery,
they asserted, had always been a term in that contract. The Dred Scott d ecision of 1857 was seen as the true voice of the Constitution on slavery, which
rhey felt the nation (North included) was committed ro pro tect and preserve. Jefferson Davis, acting as the voice of the Sou th in Congress, proposed
"· Alexander H. Stephens, A Con.<titutitmal View ofrbe l~te Wnr Between the SttlfN, 28
(1870).
,- Alexander H. Srephens, Declamtion ofthe Cwses oJSeceuion. 62 ( 1860).
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a resolution in the Senate on February 2, 1860, which would serve as a final
invitation to the North to right its wrongs in terms of Dred Scott adherence
and avoid Southern secession}8 Based on Scott v. Sanford, Davis$ resolution
outlined the constitutionality of territorial slavery and demanded in its fourth
arricle that the federa l government take all steps necessary to safeguard slavery
in the territories.··• Yet, Davis's last-resorr legislation was more a matter of principle than a specific statute. "Our right is eq uali ty and the duty of the general
government is to give adequate protection to every constitutional right which
was placed under irs care," he later rold an Alabama congressman."' The
Norrhern-conrrolled Congress obliged Davis's demand, bur only after modifying rhe resolution ro read rhar no "active" act of Congress be requ ired to legislate slavery. By mid- 1860, however, the ride of federal politics had already
turned against the South, and Republicans began to demand that Congress
ban slavery altogether, in spite of Dred Scott. Davis and other Sourhern leaders later resigned, submitting that the North's refusal to acknowledge the
South's constitutional equality, in his mind, u nderlay the crisis."
Conclusion
Dred Scott was, for Somherners, a line drawn in rhe sand on slavery.
When Northern Republicans responded to Scott v. Sanfind by designing to
ignore or overturn the decision, and gained the political leverage to do so, rhe
North had disregarded a decision of the Supreme Court of the United States
and, in Southern eyes, endangered constitutional righrs. Senator Stephens of
South Carolina declared that "the Constimtional Compact has been deliberately broken and d isregarded by these non-slavehold ing Stares ... [which
fo rmed a 'Sectional Combination for the subversion of the Constitution']
and the consequence follows that South Carolina is released from her obligation. "s~ In other words, the South chose co secede from the conrract between scares rather than submit to an abuse of ir. Dred Scott lay at the heart
of Southern secession specifically because it was the sticking point in the
section's constitutional defense of slavery. When it went, so did the South.
·•• Cooper m 304- 305 .
•.• !d. 3[ 306.
'" !d.
" ttl at :323.
'1
Stephens 674 (id. at 675 for citarion in brackets.)
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Dred Scott v. Sanford
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Sou therners felt they held the constitutional right , and the Sup reme Court
decision had proven it: T he North was nor following the rules.
As a result of the Dred Scott decision, antislavery fo rces rose up stronger
and succeeded in polarizing the nation, North against slave-holding South.
Northern Republicans were determined to elimi nate what they saw as a
grotesque and un -A.merican institution, while Southerners sought tO defend
a Supreme C ourt decision and what they saw as their constitutional rights.
With the abolitionist North set more firmly as a result, the Charleston
Mercury reported that Dred Scott was fo r the South a "viccory more fatal, perhaps, than defeat.''<.\
The Supreme Court's decision in Scott v. Sanford, argued through regular
legal channels and decided upon the basis of documented constitutional
grounds and decades o f legal preced ent by the highest court of the land, was
an official and binding stamp of validity on the legal practice of slavery.
Popular opinion- regardless of both contemporary Northern and modern
views regardi ng the morality of slavery- and hiscorical revisionism cannot
blur the facr char a decision of the Supreme Court was systematically undermined in hwor of majority views. Dred Scott should not be considered a black
mark on the record of American jurisp rudence solely because it upheld the
p ractice of slavery. The nation's refusal to give Scott v. Smifordheed, more than
the decision itself, warrants a serious degree of historical self-examination.
" Don E. Fehrenbacher, Cbarleston Mercmy, April 20- 21, 18')7, 64 ( 1989).